SZFFC v MIMIA

The applicants, SZFFC and others, sought judicial review of decisions made by the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) to refuse their applications for protection visas. The applicants were citizens of Afghanistan who had arrived in Australia by boat. The dispute concerned the lawfulness of the Minister's decisions, which were made under s 48B of the *Migration Act 1958* (Cth). The matter was heard by Hayne and Crennan JJ of the High Court of Australia.

The central legal issue before the High Court was whether the Minister, in considering the applicants' claims for protection visas under s 48B, was required to take into account the fact that the applicants had arrived in Australia by boat. Section 48B provides that the Minister may cause a visa to be granted to a non-citizen if the Minister is satisfied that the non-citizen has a claim to protection and that the Minister has a non-compellable duty to consider granting a visa. The applicants argued that the Minister's failure to consider their boat arrival was an error of law.

The High Court held that the Minister's duty under s 48B was to consider whether the applicants had a claim to protection, and that the manner of their arrival in Australia was not a relevant consideration for the purpose of that duty. Their Honours reasoned that the text of s 48B did not impose any obligation on the Minister to consider the circumstances of arrival, and that to read such an obligation into the section would be to add a requirement not present in the legislation. The Minister's discretion under s 48B was engaged only once the Minister was satisfied that the non-citizen had a claim to protection.

The High Court dismissed the applications for judicial review.